Key McVeigh Witness Criticized FBI Lab

JOHN SOLOMON

Published 8:00 pm, Saturday, May 3, 2003

Associated Press Writer

A prominent FBI science witness told federal investigators that his lab colleagues had performed shoddy work in the Timothy McVeigh case, then abruptly retracted several statements before appearing as a prosecution witness at trial, a transcript shows.

FBI explosives expert Steven Burmeister, who since has risen to the FBI lab's chief of scientific analysis, initiated a meeting Dec. 19, 1996, with the Justice Department inspector general to whom he made the original allegations 18 months earlier.

"There are several statements in the interview I would like to clarify or correct," Burmeister told the investigators in a taped interview. The Associated Press obtained a copy of the transcript.

After receiving a Miranda warning about his constitutional rights, Burmeister proceeded for 68 pages of the transcript to correct or retract earlier statements he made that colleagues who worked on the bombing evidence did not use proper techniques or were unqualified to do some of the tests they performed.

"I'm not sure why I would have said that," Burmeister said at one point when retracting an earlier statement that a knife with possible explosive residue should not have been swabbed at the lab.

FBI officials defended Burmeister, saying the lab witness asked to make the changes after seeing a summary of his first interview and that he was under no pressure to change any testimony to help the McVeigh prosecution.

"I can state categorically that Steve Burmeister has never felt pressure to change any testimony, any report from lab officials, the FBI, prosecutors or anyone else," FBI lab director Dwight Adams said.

"He made the effort because he is such a meticulous, honest person that he wanted the IG report to be correct," Adams said. "He truly is one of our best."

Legal experts said, however, the transcript might pose a longer term problem for the FBI. Since the McVeigh trial in 1997, Burmeister has appeared as a witness in several other prominent cases.

The experts said the transcript could be considered to be exculpatory evidence that prosecutors were legally obligated to turn over to defense lawyers in any cases where Burmeister is testifying about the lab techniques involved in his interviews because it speaks to the core issues of his credibility and expertise.

FBI officials said they did not know whether Burmeister's interviews have ever been turned over in any case, including cases of McVeigh and Oklahoma City bombing conspirator Terry Nichols.

"Contradictory sworn statements are the kind of information a jury could take into consideration in evaluating his credibility, especially when those statement come to bear on the very expertise he is supposed to have," said Stephen Gillers, a New York University law professor who specializes in legal ethics.

The inspector general also received information from FBI whistle-blower Frederic Whitehurst, who was Burmeister's mentor, that Burmeister had complained in the months before he retracted his testimony that he was being pressured by prosecutors and lab employees to change his testimony or scientific conclusions.

"Steve definitely spoke of the pressure to me," Whitehurst wrote in one letter in which he alleged prosecutors twice tried to get Burmeister to testify in a certain way in the Oklahoma case.

Adams said Burmeister never felt any such pressure, and if he had he would have reported it to authorities.

Burmeister's role in the Oklahoma City bombing case is being revived by Oklahoma's efforts to prosecute Nichols on state murder charges that carry the death penalty.

Nichols is already serving life in prison on federal charges related to the 1995 bombing that killed more than 160 people.

AP reported Wednesday that lawyers for FBI lab employees sent an urgent letter to Attorney General John Ashcroft 10 days before McVeigh was executed in 2001, citing evidence they alleged showed Burmeister may have given false testimony about key forensic evidence in the case. The FBI denies the allegations. The Justice Department never divulged the letter to McVeigh's lawyers and later sought to retrieve all copies of the letter from the lawyers by offering their client a cash settlement.

During his December interview, Burmeister explained he came forward to change his earlier allegations because he was "in preparation for an ongoing trial with the Oklahoma City bombing matter" and had reviewed his earlier allegations.

Burmeister said he had talked with people inside the lab, including at least one colleague against whom he made allegations, and concluded his statements 18 months earlier needed to be corrected or clarified.

For instance, Burmeister had told the inspector general in his 1995 interview that one of his lab colleagues, unit chief Roger Martz, "erred in some examinations" he performed in the Oklahoma bombing.

Burmeister reversed course in the 1996 interview. "I don't think he erred in any of these exams. … I think he did an acceptable job there," Burmeister said.

Burmeister explained he later learned from talking to Martz that he had done additional procedures that were not included Martz's exam notes.

In his 1995 interview, Burmeister criticized Martz's decision to vacuum clothing suspected of having explosives evidence, calling it an "unqualified technique." But in his 1996 interview, he gave a different assessment.

"I'm incorrect in saying that because I do believe the vacuuming technique, overall, is a qualified technique," Burmeister said.

On the lab's handling of a knife, Burmeister said in 1995 that his colleagues should have rinsed it, rather than using a moistened swab to loosen possible explosive evidence. But in 1996, Burmeister said that both swabbing and rinsing were "viable sample-removing techniques."

And Burmeister retracted his 1995 comment that Martz had not been qualified to perform one of the explosives test he performed on McVeigh evidence. "I'm incorrect in saying that he is not qualified … I would consider him fully qualified," he said in 1996.

The inspector general, however, was not convinced by Burmeister's changed account. In its report on lab problems, the inspector general sharply criticized Martz's handling of Oklahoma evidence.

"Martz's errors … reflect adversely on his ability to perform the examinations," the report concluded.

Michael Bromwich, the inspector general who oversaw the investigation, said Burmeister's revisions of his earlier statements were unusual but that it ultimately did not affect investigators' conclusions that there were widespread problems inside the FBI lab, including with the Oklahoma case.

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"I think it is unusual for someone to come forward and do this," Bromwich said. "Clearly something went on behind the scenes. But what is striking to me is he didn't succeed in recasting very much."